Michael Wayne Osborne v. Marsha A. Normand ( 2008 )

In The

Court of Appeals

Ninth District of Texas at Beaumont

______________________ NO. 09-06-513 CV ______________________ MICHAEL WAYNE OSBORNE, Appellant

V.

MARSHA A. NORMAND, Appellee

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On Appeal from the 136th District Court Jefferson County, Texas Trial Cause No. D-175,356

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  MEMORANDUM OPINION

Michael Wayne Osborne appeals from the trial court's granting of a no-evidence motion for summary judgment. Osborne sued attorney Marsha Normand for alleged legal malpractice regarding her representation of him in a criminal case. His suit and appeal are pro se.

Osborne asserts Normand breached her duty to exercise reasonable care owed by counsel to a client, proximately caused him harm and damages, and violated his constitutional rights. He also alleges he paid Normand $3,500 to represent him; she failed to put the trial court in his criminal case on notice of the representation; and the record in the criminal proceeding does not reflect her withdrawal from the case. He attributes a heart attack -- allegedly occurring during a period he was preparing documents -- to Normand's negligence in handling his criminal case.

In a legal malpractice suit, a plaintiff must show that (a) the attorney owed a duty to the plaintiff, (b) the attorney breached the duty, (c) the breach proximately caused the plaintiff's injuries, and (d) damages occurred. Alexander v. Turtur & Assocs., Inc., 146 S.W.3d 113, 117 (Tex. 2004). Unless the causal connection is either obvious or a matter within the common understanding of lay persons, the plaintiff must present expert testimony regarding causation. See id. at 115, 119-20. In this case, the alleged malpractice relates to a prior criminal prosecution; the plaintiff in these circumstances must prove that, but for the attorney's breach of her duty, the plaintiff would have prevailed in the prior proceeding. Hoover v. Larkin, 196 S.W.3d 227, 231 (Tex. App.--Houston [1st Dist.] 2006, pet. denied) (citing Greathouse v. McConnell, 982 S.W.2d 165, 172 (Tex. App.--Houston [1st Dist.] 1998, pet. denied)).

In her no-evidence summary judgment motion, Normand challenged each element of Osborne's legal-malpractice cause of action. Rule 166a(i), the no-evidence summary judgment rule, provides as follows:

After adequate time for discovery, a party without presenting summary judgment evidence may move for summary judgment on the ground that there is no evidence of one or more essential elements of a claim or defense on which an adverse party would have the burden of proof at trial. The motion must state the elements as to which there is no evidence. The court must grant the motion unless the respondent produces summary judgment evidence raising a genuine issue of material fact.

Tex. R. Civ. P. 166a(i). Osborne argues there had not been adequate time for discovery.

A court may not grant a no-evidence motion for summary judgment prior to the passage of an "adequate time for discovery." See Tex. R. Civ. P. 166a(i); Specialty Retailers, Inc. v. Fuqua, 29 S.W.3d 140, 145 (Tex. App.--Houston [14th Dist.] 2000, pet. denied). There is no requirement that discovery must be actually completed, however; the requirement is "adequate time." Specialty Retailers, 29 S.W3d at 145 (citing In re Mohawk Rubber Co., 982 S.W.2d 494, 498 (Tex. App.-- Texarkana 1998, orig. proceeding)). The appellate court reviews the issue of "adequate time for discovery" under an abuse of discretion standard. Id. Factors employed in determining whether there has been adequate discovery time include the nature of the cause of action, the nature of the evidence necessary to controvert the no-evidence motion, and the length of time the case has been active in the trial court. Id. Other factors "include the amount of time the no-evidence motion has been on file, whether the movant has requested stricter time deadlines for discovery, the amount of discovery that has already taken place, and whether the discovery deadlines that are in place are specific or vague." Id.

Osborne filed suit on June 14, 2005. Norman filed her no-evidence motion some fourteen months later on August 30, 2006. During that time, Osborne filed, among other pleadings, "Motions for Interrogatory" and a "Motion for Subpoena of Medical Records." The trial court denied the motion for interrogatory ⁽¹⁾ and granted the request for production of medical records from non-parties. Osborne also filed a motion requesting that the trial court in the malpractice lawsuit issue a subpoena to obtain the reporter's record of the "transcripts of a hearing" in the criminal case. The trial court denied the motion. Osborne explained he attempted to obtain the "transcripts" of the hearing directly from the criminal-case trial court, but to no avail. ⁽²⁾ Osborne asserts this reporter's record would have established the causal link between the alleged legal malpractice and his injuries.

Osborne does not state the outcome of the criminal case. See generally Peeler v. Hughes & Luce, 909 S.W.2d 494, 497-98 (Tex. 1995). He provided no affidavit to the trial court describing the events at the hearing in the criminal case or any suggestion as to what "expert affidavit information" would have come out of any reporter's record from the hearing. The trial court's denial of Osborne's request for a subpoena for a transcript of a hearing in a criminal case does not establish, without more, that the time for discovery was inadequate.

If a party asserts he has not had adequate time for discovery, he should file in the trial court either an affidavit explaining the need for further discovery or a verified motion for continuance. See Willms v. Americas Tire Co., 190 S.W.3d 796, 807 (Tex. App.--Dallas 2006, pet. denied). Osborne presented neither to the trial court. Osborne has not shown the trial court abused its discretion in concluding there had been adequate time for discovery.

Osborne also argues Rules 93, 166a(i), and 185 of the Texas Rules of Civil Procedure

require Normand's verification by affidavit based on personal knowledge that the discovery process was complete. Rule 166a(i) does not require that a no-evidence motion be supported by an affidavit or verification. See Tex. R. Civ. P. 166a(i). Osborne argues that Rule 93 (certain pleas to be verified) and Rule 185 (sworn account) require verification of the motion, but those rules do not apply to the motion in this cause. See Tex. R. Civ. P. 93, 185.

We overrule Osborne's issues. The judgment of the trial court is affirmed.

AFFIRMED.

____________________________

DAVID GAULTNEY

Justice

Submitted on September 20, 2007

Opinion Delivered March 13, 2008

Before Gaultney, Kreger and Horton, JJ.

1. Osborne was not required to file a request for interrogatories with the trial court. See Tex. R. Civ. P. 197.1, 197.2. If Osborne's "Motion for Interrogatory" was intended as a motion to compel discovery, Norman was entitled to an opportunity to answer or object to interrogatories before Osborne filed a motion to compel. See generally Tex. R. Civ. P. 215.1(b)(3)(B).

2. The request allegedly filed in the criminal case is not in the record before us.